Inhabt's of Corinna vs. Inhabt's of Exeter, 13 Me. 321

The action was continued for advisement, and the opinion of the Court drawn up, and delivered at a subsequent term, by Weston C. J. Lewis Williams, for the support of whom and family this action is brought, it is agreed had his settlement in the town of Exeter. That town attempts to escape the charge, by showing that he gained a new settlement in Corinna. He resided and had his home in that town for more than five years together, from and after June, 1826. And the question is, whether within the five years he received directly or indirectly any supplies or support as a pauper from the town of Corinna.

With a view to shew that the support, upon which they relied, was furnished collusively, and in fraud of the law, the defendants offered to prove certain declarations, having this tendency, made by Cushman Basset, an overseer of the poor of Corinna, when he left a notice with the overseers of Exeter. Proof of these declarations was rejected. It is insisted however, that this proof was admissible, either because Bassett is a party to the suit, or as a part of the res gesta.

He was a citizen of Corinna, who sue in their corporate capacity, and cases have been cited to show, that as such he may be regarded as a party. Ilis property is liable to be taken by any creditor of the town ; hut a citizen or inhabitant of a town has never been, in our practice, so far regarded as a party to their suits, as to admit his declarations as such in evidence. The interests of a town might be jeopardized, if they were liable to bo affected by mere declarations of any one of their citizens. The purposes of justice do not require it: for they are by statute expressly made competent witnesses.

In The King v. The Inhabitants of Hardwick, 11 East, 578, proof of the declarations of an inhabitant, as a party, was received, becuase he could not be compelled to be a witness. All the Judges place the admission upon that ground. LeBlanc J. expresses his regret, that so important a point of evidence should come up in a settlement case, where their decision could not be revised.

In our courts, an inhabitant of a town is compelled to be a witness; and although he is a party so far, as that his property may be seised on execution against the town, we arc of opinion that his declarations cannot be received in evidence. Basset was the bearer of a written notice to the overseers of Exeter. When leaving it, he made certain statements of what Corinna bad done in reference to Williams, of its effect and of their motives. The business done, the res gesta, was the delivery of the notice. The declarations were in no proper sense a part of it.

They formed no part of any business, he was negotiating in behalf of the town. If he knew any facts, favorable to the interest of Exeter, they might have called him as a witness. Winchester, another overseer was called, and he was competent to testify to all facts, bearing upon the issue. A question had been raised, of importance in the cause, whether the supplies were furnished in good faith. He best knew, for he was the overseer applied to, and the supply was furnished upon his judgment of what duty required, and by his hand".

It was then proper for him to testify, whether he acted in good faith, and in the discharge of what he believed to be his official duty. The jury have passed upon the testimony, upon which the defendants relied. They have negatived the assumption, that the supply was left as a present, or not in good faith, or with a view to prevent Williams from gaining a settlement in Corinna. And they have found that his family was in distress, standing in need of relief from the town, and that the supply was furnished in good faith, and actually received and consumed in the family.

The statute no where makes it necessary, that the suffering party should apply for relief. The duty of the overseers arises, when distress exists and relief is necessary. If the husband and father, through false pride, or a reckless disregard to the wants of his family, or from any other motive, should protest against the proffered supply, and refuse to receive it as a pauper, it is still the duty of the overseers to relieve his and their distress, and if the supply is finally received, we doubt not it comes vúthin the exception of the statute.

This was the view of the law taken by the presiding Judge in his instructions to the jury; and in our judgment it was correct. No motion is filed to set aside the verdict, as against the weight of evidence. It was the province of the jury to determine the facts. If Corinna did not give notice to Exeter, they could not claim a reimbursement. The supply was too trifling, to require such a course of proceeding. But their omission to do so vvould not affect the fact, which brings the case within the exception of the statute, and which is not made to depend upon the giving of such notice.

Nor is it of any importance, what may have been the amount or value of the supply. A settlement is not gained by a residence of five years, if the party, within that time, “ receive directly or indirectly any supplies or support as a pauper.” Judgment on the verdict.